Crisis in US separation of powers

Executive orders trump Congress and judiciary

by Brian Reading in London

Mon 6 Feb 2017

The US is in crisis mode. President Donald Trump seeks to control the executive machinery of government, usurp the powers of Congress and defy the judiciary. He has purged the senior ranks of federal administrators and exploited executive orders with abandon, blind-siding departments and agencies while ignoring judicial orders. For Trump, this is proxy warfare. His battle is for public opinion, whether strong leadership appeals or rotten leadership appals.

The bedrock of the US constitution is the separation of powers between the executive, legislature and judiciary – a system of checks and balances that was designed to prevent tyrannical rule. Nonetheless, it has always been a battleground as each arm of government seeks to dominate the other two. The issue of states’ rights v. federal powers goes back to March 1789, when the constitution came into effect, and reached its apogee in the 1861-65 civil war. President v. Congress swiftly followed.

After President Abraham Lincoln’s assassination in 1865, Vice President Andrew Johnson was appointed to replace him. Johnson wanted rebel states to be treated leniently. But Congress demanded punishment until the rebels earned redemption and were re-admitted to the union. In 1867 it passed the Tenure of Office Act, which prevented the president from dismissing federal department heads without Senate approval. This was followed by a punitive act meant ‘to provide for the more efficient government of the rebel states’, which Johnson vetoed – he was overruled by a two-thirds congressional majority. Edwin Stanton was secretary for war and demanded punishment. As commander-in-chief of the military, Johnson could frustrate army rule, but Stanton could then frustrate him. To break the stalemate, Johnson fired Stanton in violation of congressional law. He was impeached in Congress for ‘high crimes and misdemeanours’, but the Senate failed to achieve a two-thirds conviction by a single vote.

Another crisis in the separation of powers occurred in a contest of judiciary v. Congress. Between 1933-37 the Supreme Court ruled that much of President Franklin Roosevelt’s New Deal legislation and executive orders were unconstitutional. These rulings favoured big business against big government and social reform, but were violently unpopular. Roosevelt campaigned to get Congress to pass a law increasing the court’s size so that he could stack it with his own nominees. But devolving more power to the president was a step too far for Congress. He was defeated.

Roosevelt lost his battle with the judiciary, but won his war overall. He won four presidential elections and was in office from 1932 until his death in 1945. By the end he had appointed all but one of the Supreme Court judges. In subsequent years, this power was constrained when the office of the president was limited to two terms.

Trump is exploiting his power to hire and fire executive appointments to the full. His firing powers, which were reinstated to the presidency when the Tenure of Office Act was repealed in 1887, extend to 4,000 federal positions, only 1,000 of which are subject to Senate approval. It is reported but not confirmed that Trump has dismissed almost all senior State Department employees. Sally Yates, the acting attorney general, has been fired.

In August 2016 I predicted that Trump would be impeached in his first term. He has taken on the Republican establishment, federal servants, the judiciary and most foreign governments, and has shown no sign of slowing. I am no longer quite so sure about Trump’s potential impeachment – attacking ‘career bureaucrats’ may in fact boost his popularity among some voters. Today the people of Middle America are ringing their bells. Tomorrow they will wring their hands.

Brian Reading was an Economic Adviser to Prime Minister Edward Heath and is a Member of the OMFIF Advisory Board.